Doli Incapax

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  • Topic: Legal burden of proof, Criminal law, Conclusive presumption
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Doli Incapax - The Criminal Responsibility of Children

A paper by Matthew Johnston, barrister Forbes Chambers, Sydney for the Children’s Magistrates’ Conference 1 February 2006

“ ‘No civilised society’, says Professor Colin Howard in his book entitled Criminal Law, 4th ed. (1982), p343, ‘regards children as accountable for their actions to the same extent as adults’ ... The wisdom of protecting young children against the full rigour of the law is beyond argument. The difficulty lies in determining when and under what circumstances should it be removed.”[i]

Harper J; R (A Child) v Whitty (1993) A Crim R 462

Marge Simpson:Well, I’m just relieved that Homer’s safe and that you’ve recovered and that we can all get back to normal. If Maggie could talk I’m sure she’d apologise for shooting you.

Montgomery Burns:I’m afraid that’s insufficient. Officer, arrest the baby!

Chief Wiggum:Hah. Yeah, right, pops. No jury in the world’s going to convict a baby. Mmm … maybe Texas.

The Simpsons: Who Shot Mr. Burns? Part II

Smithers:That Simpson’s boy is looking at 180 years.

Montgomery Burns:Thank God we live in a country so hysterical over crime that a ten year-old child can be tried as an adult.

The Simpsons: Bart the Murderer

1.0The Age of Criminal Responsibility

In New South Wales section 5 of the Children (Criminal Proceedings) Act 1987 provides that a child under the age of ten years cannot commit an offence. This statutory presumption is irrebuttable.

The common law presumes that a child between the ages of 10 and 14 does not possess the necessary knowledge to have a criminal intention. This common law presumption of doli incapax is a rebuttable presumption that can be rebutted by the prosecution calling evidence. This means that the prosecution, in addition to proving the elements of the offence, must also prove that the child knew that what he or she did was seriously wrong in the criminal sense.

The existence of the presumption in the common law of New South Wales has been recently affirmed in Treffiletti & Ors v Robinson & Anor (unreported, Woodward J, Supreme Court of New South Wales, 9/2/81), DK v Maurice Rooney, (unreported, McInerney J, Supreme Court of New South Wales, 3/7/96), R v CRH (unreported, Court of Criminal Appeal, 18/12/96) and R v LMW (unreported, Supreme Court of New South Wales, Studdert J, 30/11/99). The defence and prosecution should consider doli incapax in all cases involving children under the age of 14.

2.0The test for rebutting doli incapax

The leading case in New South Wales on doli incapax is the decision of R v CRH (Unreported, NSW Court of Criminal Appeal, Smart, Hidden and Newman JJ, 18 December 1996). Newman J sets out the test for rebutting doli incapax and relies strongly on the House of Lords decision in C v DPP (1996) 1 AC 1 at 38:

The test can be summarised as follows:

The prosecution must rebut the presumption of doli incapax as an element of the prosecution case. The child knew the act was seriously wrong as opposed to naughty. The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction. The evidence to prove the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however, horrifying or obviously wrong the act may be. The older the child is the easier it will be for the prosecution to prove guilty knowledge.

2.1The prosecution must rebut the presumption of doli incapax as an element of the prosecution case

The presumption of doli incapax is not a defence; it is an element of the prosecution case. If the prosecution fails to call evidence to rebut the presumption there is no case to answer. If, at the conclusion of the prosecution case there is evidence that could satisfy a jury, the hearing or trial will proceed. In some cases the defence may...
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